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Palavi v. minister for Immigration, Local Government and Ethnic Affairs (unreported, Federal Court, 18 August 1992)

JUDGES: J. METLEDGE (Member)

JUDGMENT-1: J. METLEDGE This is a review of a decision refusing the grant of a December 1989 (temporary) entry permit to the Principal, Mr Kwang Chang Tung. The original application was lodged in Sydney on 18 March 1992 and a decision refusing the application was made by the delegate for Immigration, Local Government and Ethnic Affairs (the Department) on 7 May 1992. The application for review was made to the Tribunal on 19 May 1992 by the Applicant, Ms Mei Chin Tung. The relationship of the Applicant to the Principal is that of nominator and sister.

2. The Principal was born on 16 June 1960 and is a citizen of Burma.

3. The Principal arrived in Australia with a visitor visa on 4 August 1985 and was granted an entry permit valid to 4 September 1985. After this date, no further entry permit was granted to the Principal who consequently became an illegal entrant.

4. In order to determine the entitlement of any applicant to a visa or entry permit the Tribunal must have regard to the provisions of the Migration Act 1958 and the Migration Regulations. The Regulations provide for classes of visas and entry permits and prescribe criteria which have to be met before an applicant becomes entitled to a visa or entry permit. Non-citizens who wish to travel to Australia must hold a valid visa. Holders of a valid visa may travel to a landing place in Australia, such as an airport, but may not leave the airport. Such persons require the grant of a valid entry permit on arrival to enable them to enter and remain legally in Australia. The Regulations provide for the grant of permanent visas and entry permits and temporary visas and entry permits. Most classes of temporary visas and entry permits such as those issued to visitors preclude their holders from applying for permanent residence after arrival in Australia. However, such persons may be eligible to apply for one or more of a number of so-called "extended eligibility" entry permits. These are a class of temporary entry permits which do not preclude their holder from applying for permanent residence.

5. There are prescribed criteria, such as health and public interest criteria, which apply to all classes of visas and entry permits. The Regulations also prescribe additional criteria which are applicable to a particular class of visa or entry permit. The Tribunal will generally first examine whether the additional criteria for the particular class of visa or permit are satisfied, because if these criteria are not satisfied then there will be no need to further consider whether other prescribed criteria are satisfied.

6. By virtue of regulation 34A of the Migration Regulations, applicants must satisfy the prescribed criteria, other than health and public interest criteria, at the time of the application for the visa or entry permit and as applicable at that time. There are certain exceptions to this rule, some of which are set out in regulation 34A itself, while other exceptions are contained elsewhere in the Regulations. Some exceptions are specifically mentioned in the Migration Act, particularly in section 24(3) and section 30(2). Further reference will be made to the relevant time for the purposes of this case as the need arises.

7. In determining facts as they existed at the date of application the Tribunal may take account of later facts in so far as these throw light on the situation as it existed at the earlier date. In Bretag v Immigration Review Tribunal and Minister for Immigration, Local Government and Ethnic Affairs (unreported, No. SG 72 of 1991, 29 November 1991) the Federal Court held that the Tribunal may have regard to subsequent history in determining a question of fact at the time of application, so long as it "tends logically to show the existence or non-existence of facts relevant to the issue to be determined", quoting from Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J.

8. In reaching its decision the Tribunal is bound by the relevant legislation and applies relevant government policy. General policy guidelines are applied by the Tribunal unless there are cogent reasons to the contrary. General policy directions issued by the Minister pursuant to section 179 of the Migration Act are applied wherever they are relevant. (See generally Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 and Ali v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Federal Court, 14 September 1992)).

9. With regard to the onus of proof issue which arises in this type of case, while there is no legal onus on applicants to give sufficient evidence to prove their claims, it is nevertheless in applicants' interest to make any evidence in their knowledge available to the decision-maker. This is so because if at the end of the review the Tribunal is uncertain or unable to decide that on the balance of probabilities sufficient evidence exists to entitle an applicant to a visa or entry permit, it must decide against the applicant.

10. To be entitled to the grant of a December 1989 (temporary) entry permit, the Principal must satisfy the relevant requirements of regulation 131A as it existed at the time of application.

11. At that time, the relevant parts of regulation 131A provided as follows: 131A.

(1)The following criteria are prescribed in relation to a December 1989 (temporary) entry permit:

(a)the applicant for the entry permit was a prohibited non-citizen on or before 18 December 1989;

(b)the applicant was in Australia on, and has not left Australia since, 18 December 1989;

(c)the applicant applies, in accordance with these Regulations, before 19 December 1993 for the entry permit;

(d)on 15 October 1990 and continuously until the Minister decides to grant, or not to grant, the entry permit:

(i)the applicant has a genuine and continuing relationship as the spouse of an Australian citizen or of an Australian permanent resident; or

(ii)the applicant is a dependent child of an Australian citizen or of an Australian permanent resident; or

(iii)the applicant is an aged parent of an Australian citizen or of an Australian permanent resident and satisfies the balance of family test; or

(iv)the applicant is:

(A)an aged dependent relative; or

(B)an orphan relative; or

(C)a special need relative; or

(D)a remaining relative within the meaning of regulation 9; of a settled Australian citizen or settled Australian permanent resident; or

(v)there is any other compassionate ground for the grant of an entry permit, to the effect that refusal to grant the entry permit would cause extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident;

(e)if, in the opinion of the Minister, the applicant should not be granted an entry permit without an assurance of support, an assurance of support satisfactory to the Minister has been given;

(g)the applicant has been nominated by the relevant related person referred to in paragraph (d);

(h)the applicant notifies the Department, without unreasonable delay, of each change of his or her residential address.

(2)In this regulation, "compassionate ground" does not include a circumstance that results directly from an event of a political nature only that has occurred in the applicant's country of citizenship or of usual residence.

12. The Tribunal considered whether this case met the criteria in regulation 131A (l) (d) (v).

13. In order to satisfy the relevant criteria in regulation 131A (l) (d) (v) there must be, among other things, a compassionate ground existing as at 15 October 1990 and continuing until the date of decision, to the effect that refusal to grant the entry permit would cause extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident.

14. The Tribunal on a number of occasions, has given consideration to the meaning of "extreme hardship" and "irreparable prejudice', in regulation 131A. In these cases, the Tribunal has resorted to the Concise Oxford Dictionary for a definition of these words which were carefully chosen by the legislature. This is to enable the Tribunal to give the words their ordinary or natural meaning. According to this Dictionary "hardship" means "hardness of fate or circumstance; severe suffering or privation" and "extreme" means "having some characteristic in the utmost degree". "Prejudice" is defined as "injury, detriment" and "irreparable" is defined as "that cannot be rectified or made good".

15. Accordingly, to meet the criteria of regulation 131A any hardship or prejudice suffered must be of the utmost nature or beyond repair.

16. The Minister, acting under section 179 of the Migration Act, put out a Policy Direction dated 18 August 1991, which also dealt with the words "extreme hardship" and "irreparable prejudice". Although some parts of this Policy Direction have been held to be inconsistent with the legislation (see for instance Palavi v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Federal Court, 18 August 1992)), the bulk of this Policy Direction is binding on the Tribunal as set out in the Federal Court case of Ali v Minister for Immigration, Local Government and Ethnic Affairs (as above).

17. This Policy Direction stated, among other things: "EXTREME HARDSHIP

In assessing the 'extreme hardship' aspects of the criterion, decision makers should have regard to the following:

the hardship may be financial, emotional or physical but must be substantial and quantified where possible;

links with family members should be investigated to ascertain whether they can provide assistance or support to lessen the hardship;

the existence and availability of other general community support services which the Australian party could reasonably access should be explored to assess whether these could be used to lessen the hardship;

IRREPARABLE PREJUDICE

It is accepted that some disadvantages will be caused to an Australian party directly affected by the departure of an illegal entrant with whom a close and long term relationship has existed. It is the degree and extent of the disadvantages that have to be assessed. An application should be approved only when the disadvantages amount to an irreparable prejudice. In assessing applications, the following factors should be taken into account:

all claims should be examined and the nature of the prejudice claimed and any potential remedies should be identified;

the reasons why the claimed prejudice cannot or is unlikely to be remedied in the long term are to be tested;

the prejudice must be long-term or permanent.".

18. On the relationship to an Australian party, the Policy Direction states: "An assessment of the hardship and/or prejudice that would be suffered by Australian citizens or residents should take into account the hardship that will be suffered by any Australian citizens or residents who are likely to be affected. It is expected that those affected would usually be in a familial or other close emotional relationship with the applicant. However, hardship and/or prejudice may arise from other relationships, for example, economic or commercial. officers should keep in mind that the hardship and/or prejudice must be of sufficient degree or duration to be seen as being extreme or irreparable. As long as "extreme hardship" or "irreparable prejudice', is likely to occur, any Australian citizens or residents who are likely to be affected should not be excluded from consideration. Hardship or prejudice that is unlikely or fanciful should be excluded.".

19. At a hearing conducted by the Tribunal, the Applicant gave evidence to the following effect:

1. I'm by myself in this country. I've just picked up a job but it is not a good job.

2. I'm feeling depressed and I get sick. When I'm sick there is no-one to help me.

3. I've purchased a house but I can't keep up with the payments and I could lose it very soon.

4. My brother is the one keeping me going and he assists me whenever I'm in trouble and he helps me with house payments. He helps me with the English language because he speaks the language but I can't.

5. I have qualifications in civil engineering recognised but they are not here. I also have trouble getting work because of lack of knowledge in English.

6. I suffer from pain in the joints and sometimes I can't do any work. Because of my health I feel depressed and my brother's support helps me to feel better. He also helps me with the housework when I'm unable to do it.

7. I've been working as a contractor with Telecom for about 3 months and I earn about $ 300 per week. My job is mostly tying up mail bags.

8. I came to Australia on 20 February 1989 on a migrant visa. I left on 19 March 1989 and I returned on 6 April 1990.I left on 9 December 1990 and returned on 16 December 1990. I left on 5 March 1991 and returned 13 March 1991.

9. I purchased my house in October 1990 for $ 140 000. I borrowed $ 50 000 from the Advance Bank.

20. The Principal gave evidence to the following effect:

1. I'm worried about my sister and the house that she bought. She is always getting sick and she is by herself. I make most payments on the house.

2. If I'm here I can support her and help her with all her needs.

3. The house was purchased for $ 142 000. The mortgage is $ 40 000 and repayments are $ 700 per month.

4. I came to Australia before my sister. I'm the one who encouraged her to come here and I'm now supporting her and if I leave she will have no-one here.

21. The evidence in this case discloses that the Applicant came to Australia as a migrant on 20 February 1989. As outlined above, she has made a number of overseas trips since then.

22. The Applicant owns her house, having purchased it for $ 140 000 in October 1990 although she has a $ 40 000 mortgage on it. She is currently employed with Telecom earning an average of $ 300 per week.

23. Her main claim to either extreme hardship and/or irreparable prejudice if her brother (the Principal) departs Australia is that she would be lonely without him, that she would miss him, that she loves him and that he helps her financially especially in meeting the repayments on the mortgage.

24. The evidence of the Principal is similar to that of the Applicant.

25. Detailed written submissions were made concerning the history and future prospects of both parties in Burma. The submissions give a very bad picture of the situation in Burma concerning the disregard for human rights and of the suffering that the Principal would endure if he was forced to return to Burma.

26. Both written and oral evidence was given by the Applicant that she suffers from arthritis and bouts of depression and that she receives treatment from Dr Soe of Richmond.

27. Looking at the evidence, the Tribunal finds that neither at 15 October 1990 nor at the present will the departure of the Principal cause either extreme hardship or irreparable prejudice to the Applicant. As at 15 October 1990 the Applicant had a sum of $ 100 000 which she chose to use to buy a house. Currently she still owns the house and is employed by Telecom earning $ 300 per week average. She has made three overseas trips in the space of two years. She is not in need of financial assistance.

28. Her main problem is that she will lose the love and affection that her brother provides. This by itself does not amount to either extreme hardship or irreparable prejudice. When she chose to come to Australia she would have known that her brother was illegally present in Australia and that he may not be able to remain in this country.

29. The Applicant is in the position of any person who makes a decision to migrate to another country. Accordingly, she faces the same hardship and the same prejudice that is faced by any migrant. There is nothing in this case which indicates that her hardship is extreme or her prejudice irreparable.

30. After considering the evidence in accordance with the relevant legislation and in the light of government policy the Tribunal is of the opinion that the departure of the Principal would not cause extreme hardship or irreparable prejudice to an Australian citizen or permanent resident. There may be some hardship and prejudice suffered but not of sufficient degree so as to be considered as extreme or irreparable. As stated earlier, to meet the criteria of regulation 131A any hardship or prejudice suffered must be of the utmost nature or beyond repair. These are very severe criteria and the Tribunal can find no reason to show that the departure of the Principal will cause extreme hardship or irreparable prejudice to the Applicant or any other Australian citizen or Australian permanent resident.

31. The Tribunal, while coming to the conclusion that the Principal is not entitled to the entry permit, nevertheless understands the plight of all members of this family because of the circumstances in which they find themselves. However, the Tribunal has no discretion in this matter but must apply the strict criteria in the Regulations. Moreover, section 118(3) of the Migration Act 1958 (Cth) expressly states: "In spite of anything else in this Act, a review authority shall not, by varying a decision or setting a decision aside and substituting a new decision, purport to grant an entry permit on humanitarian grounds.".

32. There may be other criteria on which this application will also fail but it has not been necessary to consider them.

33. The facts of this case fall short of meeting the criteria in regulation 131A and the Tribunal has no discretion to waive their strict application. Furthermore, there is nothing in the file or in the submissions to suggest, nor did it become apparent during the review, that the Principal might have grounds to apply for an entry permit of the same or a different class so as to enable the Tribunal to invoke the so-called "aggregation" provision of section 121 of the Migration Act and to afford the Principal an opportunity to make a new application. Accordingly, the Tribunal has no option but to affirm the original decision.

DECISION

34. The Tribunal affirms the decision refusing the grant of a December 1989 (temporary) entry permit to the Principal.